The EUROPOL Act, 2012 re-enacts existing provisions with respect of the European Police Office (EUROPOL). It implements E.U. Council Decision 2009 replacing the existing Europol convention and protocols. These have been given the force of law by the Europol Act 1997 amended in 2006. Europol has legal capacity and may sue and be sued, hold assets etc.
The designated authorities for the purpose of the Act are the Commissioner of Garda Síochána. In relation to revenue offences, the Revenue Commissioners are designated. Other states have equivalent designated bodies.
The Europol National Unit within the Garda Síochána is designated as the National Unit for the purpose of the legislation and the EU Decisions. It operates under the control of the Garda Commissioner, who is responsible for assigning members of an Garda Síochána to International Units.
The head of the National Unit is a member of an Garda Síochána of at least the rank of Chief Superintendent. Other duties may be assigned in addition to the Chief Superintendent, in addition to his role as head of the National Unit.
The Minister for Justice, in consultation with relevant parties, may assign persons other than members of an Garda Síochána including the members of the Revenue Commissioners to be members of the National Unit. The functions of the National Unit include liaising and communicating with Europol and competent authorities of other member states, issuing and responding to requests for information and intelligence and performing such other tasks as are required by the Council Decision.
The National Unit may refuse a request for information where to do so would prejudice the security or other essential interests of the State, prejudice a criminal investigation or criminal proceedings in the State or if it jeopardises the safety of any persons. The National Unit may communicate directly with the Europol information system for the purposes of the Europol system.
The Garda Síochána must send one or more members of the National Unit as a liaison officer to Europol. The role of the liaison members is to provide liaison between the National Unit and Europol and otherwise cooperate with Europol and Europol staff. Liaison officers who are not members of Garda Síochána have the same immunities and privileges as the Gardai.
Europol may request member states to initiate criminal investigations. The National Unit is to notify Europol of the decision as to whether or not to investigate. The National Unit must notify the Europol of the result of an investigation carried out under a request.
Where the request for an investigation is not accepted the National Unit must notify Europol of the reasons for refusing unless this would harm essential national security interests, prejudice an ongoing criminal investigation or proceeding or would jeopardises the safety of individuals or an individual.
There is provision for transmission of data to the Europol information system. Systems used to store personal information about persons who are suspected of having committed or have been convicted of committing a crime for which Europol is competent or where there are reasonable grounds to believe that they will commit such an offence.
The personal data which may be included is specified. It must relate to the individual and may include information relating to the names, birth certificates, nationalities, place of residence, profession, identification numbers such as passport or licence numbers or other identification data such as fingerprints or DNA profiles.
Information provided to the EIS may or may not relate to a person referred to above and may include details of criminal offences, time and date of commission, authority investigating the offence, suspected members of a criminal organisation or details of criminal convictions. Other types of information may be transmitted to the information system on request. It must refer to persons in the above category.
There is provision for transmission of data for purposes other than the above. Where data is transferred for another purpose such as analysis or file work, the National Unit is to determine the conditions for handling the data transmitted, including its examination. The prior consent of the National Unit must be obtained for its use or dissemination.
A National Unit liaison officer where he considers that data is incorrect or requires modification may correct or modify or delete the data as appropriate on request of the EIS to do so. The National Unit liaison officer must notify the other state where it believes the information provided by the state is incorrect or inaccurate.
Where the information in the system relates to a criminal offence, and the prosecution has been abandoned for that offence, or the accused has been acquitted, the National Unit shall cause the data to be deleted. Where it is deleted from State files which have been provided to EIS, the National Unit is to inform Europol.
The National Unit and liaison officers may access and receive data from the European information system for the purpose of combating and preventing crimes within the scope of Europol’s competence. Competent authorities may query this system only to determine whether particular information is available on it. Where searches by the authorities result in a positive hit, then the authority shall request the relevant national unit to obtain the data.
The use of personal data in the State obtained from Europol may be used by competent authorities only to prevent and combat crimes in relation to which Europol is competent and to prevent and combat other serious crimes. Competent authorities must comply with any restrictions on the use of the data imposed by Europol or other communicating states. Competent authorities may waive any restrictions on the use of the data following consultation with the communicating state. They may request the communicating states to waive restrictions on the use of the data.
There is provision for access by individuals to personal data. The national authority is the Data Protection Commissioner. A person may request information as to whether data relating to him has been or is being processed by Interpol. He may have such information in so far as it exists communicated to him or her.
The Data Protection Commissioner must forward a request for access to personal data to the National Unit as soon as practicable. The National Unit must forward the request for information to Europol within 30 days. The grounds for objecting to disclosure are set out in legislation, including where
- it considers providing the information would prejudice the sovereignty, security or other essential interests of the state,
- prejudice of criminal investigation or proceedings in the State or
- it prejudices the rights and freedoms of any person.
The interests of the person making the request should be considered when considering the making of an objection to the disclosure of information. The state is liable for injury, loss or damage caused by legal or factual error in relation to data processed at Europol where the injury, loss or damage was caused in the State.
The Data Protection Commissioner is the national supervisory authority for the purpose of the legislation and the Council Decision establishing the Europol. The authority of the Data Protection Commissioner to access the data provided to the European Information System and the requirement on the Data Protection Commissioner to inform the joint supervisory body of action taken in relation to the EIS is confirmed.
The Official Secrets Acts applies to facts and information which comes to the knowledge of any director or member of Europol or other person under a particular obligation of discretion or confidentiality under the legislation or the legislation establishing Europol.